Double-Tax-Treaty between Austria-Italy: COVID-related home office does not damage the applicability of the "Frontier-Worker-Rule" and does not establish a "Permanent Establishment" abroad

The competent authority of the Republic of Austria and the competent authority of the Republic of Italy, desiring to minimize the negative tax consequences of the COVID-19 pandemic and in particular the burden of cross-border workers, have concluded the following competent authority agreement according to Article 25 paragraph 3 of the Convention between the Republic of Austria and the Republic of Italy for the avoidance of double taxation and the prevention of tax evasion and avoidance with respect to taxes on income and on capital, signed in Vienna on the 29^th June 1981 as amended by the Protocol signed in Vienna on the 25^th November 1987 ("the Convention") with respect to the interpretation and application of Article 15 paragraph 4 of the Convention:

1. Interpretation and Application of the "Frontier-Worker-Rule" in the sense of Article 15 paragraph 4 of the Convention

(1) The special rule regarding the taxation of income of frontier workers under Article 15 paragraph 4 of the Convention requires - besides the place of residence and the workplace close to the border - that the respective taxpayers usually ("üblicherweise" respectively "abitualmente") commute to their place of work. Thus, the exclusive right to tax is conferred on the State of residence.

Herewith the competent authorities of both Contracting States agree that taxpayers usually commuting to their place of work, but currently working in home office due to the prevention of the spread of COVID-19, shall still be taxed as frontier workers under Article 15 paragraph 4 of the Convention

2. Entry into force and termination

(2) This competent authority agreement enters into force on the date after the last of the signatures by the competent authorities. It applies in the context of employment exercised between March 11^th 2020 and June 30^th 2020 and extends from June 30^th 2020 automatically from the end of a calendar month to the end of the next calendar month, unless it is terminated by the competent authority of one of the Contracting States at least one week before the beginning of the following calendar month by means of a written declaration, to the other competent authority of the other Contracting State, following a consultation between the competent authorities.

Homeoffice due to Covid 19 does not lead to any foreign „Permanent Establishment“ of the employer

In this context, the legal view of the Austrian Federal Ministry of Finance in connection with the possible establishment of a domestic permanent establishment of a foreign employer is important: In view of the extraordinary nature of the COVID-19 crisis, unless the work in the home office becomes the normal case, this will not create a permanent establishment for the foreign company under the law of the contract, because it will not have a sufficient stability or continuity. As well as the company will not have a sufficient control over the homeoffice.

July 1st, 2020 | Author: Heinz Harb | LBG

Contact & Advice: This information naturally shows basic aspects of the topic - for completeness and correctness no guarantee can be given despite careful preparation. LBG will gladly advise you in your individual situation. Please contact one of our 31 Austria-wide locations (www.lbg.at) or welcome@lbg.at - we will gladly bring you together with one of our experts, who is very familiar with your request.